IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150416

Docket: M66595

Registry:
Nanaimo

Between:

Nahid Rabiee

Plaintiff

And

Joshua Donald
William Rendleman, also

known as Joshua D.
Rendleman, and Jerrit Onley

Defendants

Before:
The Honourable Madam Justice Sharma

Reasons for Judgment

Table of Contents

I.  FACTS. 3

A. Ms. Rabiee before the Accident 3

B. Employment History. 5

C. Ms. Rabiee’s Health after the
Accident 6

D. Changes to Ms. Rabiee’s Lifestyle
after the Accident 7

E. Medical Evidence. 10

1. Failure to follow medical advice. 10

2. Pre-accident conditions. 11

3. The consistency between Ms.
Rabiee’s symptoms and the nature of the accident 12

F. Findings of Fact 15

II.  ISSUES. 16

III.  ANALYSIS. 17

A. Causation. 18

B. Non-Pecuniary Damages. 19

C. Other Damages. 22

1. Loss of Future Earning Capacity. 23

2. Future Care. 26

D. Mitigation. 26

IV.  CONCLUSION. 29

V.  COSTS. 29

[1]            
This case is about a low velocity motor vehicle accident. The defendants
admit liability but dispute whether the accident injured the plaintiff and, if
so, the degree and extent of any injury. They also say that the plaintiff has
failed to mitigate her losses.

I.        FACTS

[2]            
The accident happened on October 7, 2008. The plaintiff, Ms. Nahid
Rabiee, was rear-ended by a vehicle driven by the defendant, Mr. Jerrit Onley.
She says that she heard a “bang”, lurched forward in her seat and immediately
felt nauseous. She says two days later her whole body felt “achy”.

[3]            
Mr. Onley says the collision was no more than a “tap”. He says he was
stopped behind Ms. Rabiee’s vehicle at a red light when he noticed he bumped into
her car. He was distracted and looking away from his line of travel. He says he
never took his foot off the brake pedal but must have eased up on it, during
which time his car travelled approximately 10 feet.

[4]            
Coincidentally, after exchanging information, Mr. Onley ended up
directly behind Ms. Rabiee in a drive-through lane of a nearby Tim Horton’s. Mr.
Onley says he noticed a plastic “plug” was loose on the plaintiff’s rear
license plate holder so, while both were stopped, he got out of his vehicle and
pushed it back in. It is agreed by the parties that that was the only damage to
the plaintiff’s vehicle.

[5]            
The accident in this case was very minor. The parties agree that an
injury justifying compensation may result from even the most minor motor
vehicle accidents. But the defendants also say that, while the degree of damage
to a vehicle is not determinative of the degree of the plaintiff’s injury, it
is a relevant consideration.

A. Ms. Rabiee before the Accident

[6]            
Many witnesses testified that Ms. Rabiee was a gregarious, caring, very
hardworking and fun person. She seemed to have endless energy and capacious
generosity. She was physically active and kept in good health.

[7]            
Ms. Rabiee was born in Iran and moved to Canada in 1972. She graduated
from high school in 1982. At the time of the accident she was 44 years old. She
was first married in 1987 and had two sons: the first in May 1988, the second
in July 1990. Her first marriage ended in about 2000 and she married for a
second time in 2003.

[8]            
Ms. Rabiee, her first husband and their children moved a number of times
over the years but, by September 2000, they settled in Nanaimo where Ms. Rabiee
became active with the local Baha’i community. Her faith has always been
important to her. She has always been involved administratively and socially, often
holding important positions within Baha’i organizations over the years. In
Nanaimo she also volunteered at workshops which addressed drug and alcohol
problems and she was on the board of a local charity.

[9]            
Ms. Rabiee loved playing soccer and played regularly on an “official
team” (which I infer was at a level higher than purely recreational play). Her
sons also played soccer and she was very committed to their sport, sometimes
coaching their teams. She also swam long distances, regularly attended the gym
and enjoyed walking and running. She loved dancing and, I get the impression,
she was often the life of a party. Ms. Rabiee did not just socialize; she
organized and hosted many social events in the Baha’i community at her house
and at larger venues. In particular, she helped organize a Baha’i New Year’s
celebration, an event attended by about 500 people. The Baha’i faith recognizes
a “feast” every 19 days, which typically involves families coming together, and
Ms. Rabiee frequently hosted and cooked for these events.

[10]        
She and her first husband separated in December 2000. She met her second
husband (Mr. Faramarz Rabiee) in Nanaimo and he operated a video store when
they met. They were married in September 2003. Mr. Rabiee also had two
children, about the same age as Ms. Rabiee’s sons. The family was very active
and socialized a lot. Mr. Rabiee’s son, Nabil, testified at trial and said Ms.
Rabiee was the glue that held the family together. They enjoyed travelling to
California, Arizona and Chicago a few times as a family.

[11]        
Upon marriage, Mr. and Ms. Rabiee, along with their respective teenage children,
lived in a house near Departure Bay but moved in August 2004 to a house on
Kestrel Drive in Nanaimo. That house was described as being “like a train
station” because of the number of people coming and going. This included her
and her husband’s sons and their friends, Ms. Rabiee’s large extended family
and, very often, friends and members of the Baha’i community. Ms. Rabiee’s
parents lived in Nanaimo, as did her brothers, one of whom has 10 children. Her
life was full and vibrant.

B. Employment History

[12]        
Her history of employment reveals her to be a very industrious person.
She started working at age 15 (at a senior’s home, working full day shifts).
After completing high school, she trained to be a legal secretary but did not
like that work so she then worked in retail. In 1985, she began working at an
auto dealership in the accounting department.

[13]        
It was during this time she met and married her first husband and the
family moved a lot. They moved from Pitt Meadows to Campbell River in 1989.
While in Campbell River, Ms. Rabiee attended college taking business courses.
She got hired at an auto dealership and in 1992 also opened a food kiosk
business (“Mr. Kabob”) which, unfortunately, did not survive the economic
downturn. In 1994, she worked at Superstore in Courtenay in its Industrial
Relations Department.

[14]        
The family moved to Vernon for a year in 1995 where Ms. Rabiee took some
computer courses. Eventually they moved to Prince George where she found a job
in accounting at an auto dealership. They stayed in Prince George for about
four years and Ms. Rabiee attended a local college while working. She also
worked for the Elizabeth Fry Society from 1998 – 2000, initially as an assistant
to the executive director but eventually as the organization’s financial comptroller.

[15]        
In 2000, the family moved back to Nanaimo. Ms. Rabiee took a one-year
commercial accounting course at Vancouver Island University. For about one year
after completing that course, she worked as an administrator and finance
manager with an organization involved in drug and alcohol prevention and
treatment. In 2003, she began working for her brothers’ residential and
commercial construction business (Nur Enterprises Ltd.) as the comptroller until
about 2007.

[16]        
In 2007, she got hired to work with a division of Home Depot called 3D
Interior Fashions Inc. (“3D”). Initially she was hired as an interior decorator
for window treatments. At the same time, she studied for and obtained her
realtor’s license and set up first with Re/Max and then Royal LePage. Although
qualified, she did not really pursue a career in real estate and, as a result,
she was not successful at it.

[17]        
In July 2008, she was offered the position of regional sales manager
with 3D. She was responsible for the window treatment design and installation
departments of 28 Home Depot stores across the province. She often needed to
visit the stores to train associates, hire local installers, review displays
and deal with vendors. In addition, she was responsible for the associated
administrative tasks and paperwork. She travelled about 70% of her employment time
and the balance of her time was spent on the phone and computer. Most of her
travel involved driving. The job was demanding but rewarding for her. She said
she loved her work.

C. Ms. Rabiee’s Health after the Accident

[18]        
Immediately after impact, Ms. Rabiee says she felt nauseated. Ms. Rabiee
says she went to see a doctor on October 10, 2008, where she was given a
referral for physiotherapy. She saw a physiotherapist on October 28, 2008, but
missed her next appointment because she had to travel to Vancouver for work.

[19]        
Ms. Rabiee says she suffered neck and lower back pain for the first two
years after the accident. She also had leg pain and difficulty raising and
keeping her arms up (for instance, to put her hair up), although that pain did
resolve with time. She says the other symptoms increased over time such that,
by about 2010, she was suffering chronic pain. Over the two years, she said she
also developed upper back pain, as well as headaches, difficulty sleeping and
reduced energy. She frequently took sleeping pills to help her sleep and ibuprofen
for pain, something she did not do before the accident. She felt depressed and
frustrated by her pain and the impact it was having on her life.

D. Changes to Ms. Rabiee’s Lifestyle after the Accident

[20]        
Ms. Rabiee says that as her pain became chronic and she developed more
symptoms, her social life diminished. She was no longer able to manage, plan or
host the number of Baha’i events that she used to. She could not perform the
same administrative duties for the community. Her participation in soccer,
hosting of dinner parties, dancing, swimming and walking were all reduced or
ceased completely. This represented a huge change in her lifestyle. Many
witnesses testified they saw a noticeable difference in Ms. Rabiee’s demeanour
and energy level during this time and that evidence was not contradicted.

[21]        
There is also no doubt that, beginning in 2010, Ms. Rabiee had many
stressors in her life. She says she was experiencing more pain and, at the same
time, her husband’s video store closed down, meaning she became the sole bread
winner for the family. They had to do some re-financing to make ends meet,
adding to the financial stress on the family. To further add to her burden, her
parents moved in with her and her family because her brothers’ business
collapsed and the home her parents lived in had to be sold. She was also
dealing with an audit by the Canada Revenue Agency.

[22]        
In June 2011, Ms. Rabiee joined with a friend (Odet Aljian) and her
friend’s daughter (Melina Simonian) to open a soup and sandwich business at the
ferry terminal. She said they had always talked about trying to go into
business together and during one of her trips to the mainland she had noticed
the ad for a food stall at the ferry terminal. She invested her own money in the
business but never intended to work in the shop; she viewed herself as a silent
partner. Ms. Aljian was an excellent cook who took care of the operations and
her daughter oversaw the financial aspects and bookkeeping.

[23]        
By early 2014, Ms. Rabiee became aware that the business was struggling.
Unfortunately, Ms. Aljian suffered a reoccurrence of cancer. Ms. Rabiee moved
back to Nanaimo for a number of months in order to handle the situation by
getting rid of excess inventory, reducing the number of employees, advertising
the business for sale and eventually finding a buyer. Although she did work at
the store during this time, she did not take on tasks requiring any heavy
lifting.

[24]        
Ms. Rabiee separated from her husband in March 2013. He refused to move
out of the house so Ms. Rabiee, together with her parents, her children, one of
Mr. Rabiee’s sons and a family friend all relocated to a rental home. This
was clearly a very difficult time in her life.

[25]        
Her extended family took a big holiday together in California in July
2013. This was an opportunity for them to discuss their situation given the
collapse of the brothers’ business and Ms. Rabiee’s health. It was decided
that one of her brothers would take their parents to live in Prince George.

[26]        
With her family’s encouragement, Ms. Rabiee resolved to directly address
her chronic pain. She made the difficult decision to quit her job, a job that
she loved. She testified that she would have stayed with 3D had it not been for
the pain.

[27]        
Ms. Rabiee knew the company would need time to find a replacement so she
agreed to work until December 2013. Her plan was to move to Prince George after
that. Because her parents moved up to Prince George, the family moved out of
the rental accommodation and Ms. Rabiee stayed with friends for part of the
fall of 2013.

[28]        
When she moved to Prince George in early 2014 (after the return to
Nanaimo to assist in selling the food kiosk business), she obtained medical
employment insurance benefits and she decided to focus on her health. Within
two weeks she began exercising. She commenced an exercise regime of swimming
and going to the gym. She focussed on healthy eating. Her efforts were
successful because she lost 25 pounds and dropped a number of dress sizes.

[29]        
Ms. Rabiee admits that while she was working at 3D and after the
accident, her doctors told her to slow down, attend physiotherapy and do more
exercise. She says she did try swimming and walking and could not do as much as
she would have liked. She only attended physiotherapy about four times. She
said with her job, she was constantly on the go, travelling 70% of the time,
and it was very difficult to depend upon regular and frequent physiotherapy
appointments. She was also worried about the cost since her husband was not
earning any income.

[30]        
I have no doubt that Ms. Rabiee experienced a profound change to her
lifestyle in the years after the accident. She had many witnesses testify on
her behalf and their evidence was consistent on this point. Those witnesses
were: her son, Vahid Mathiscyk; her second husband’s son, Nabil Rabiee; a
family friend, Isaac Zebaida; her former business partner and friend, Odet
Aljian; Ms. Aljian’s husband, Hamid Bejhati; Ms. Aljian’s daughter, Melina
Simonian; and Ms. Rabiee’s friends who had known her for about seven years,
Tayyebeh Shir Koobi and Ellen Murrell.

[31]        
The defendants called Ms. Rabiee’s husband, Faramarz Rabiee, whom I do
not find to be a credible witness. He was defensive during his
cross-examination. He testified that Ms. Rabiee and her family kept him in the
dark about the accident. He claimed he knew nothing about it at the time even though
he admitted he signed a letter acknowledging the accident. His evidence about
Ms. Rabiee’s condition was vague, and in general, his testimony was internally
inconsistent and inconsistent with the testimony of other witnesses.

[32]        
Mr. and Ms. Rabiee are currently involved in litigation about the
dissolution of their marriage. I find it more likely than not that Mr. Rabiee’s
testimony was a misguided attempt to discredit Ms. Rabiee thinking it would
assist his position in the matrimonial case. Given the existence of this
litigation, which I understand to be contentious, it is difficult to understand
why the defendants would call the plaintiff’s ex-spouse as a witness. In any
event, I find his evidence to have minimal, if any, reliability. Given that, along
with the poor quality of his evidence and his defensiveness on the stand, I
place no weight on his evidence.

E. Medical Evidence

[33]        
Dr. Pillay, who was Ms. Rabiee’s doctor from about May 2010 until she
moved to Prince George (he was proffered as an expert in family medicine and
the defendants did not challenge his expertise to give opinion evidence), testified
at trial as did, Dr. Piper, an orthopedic surgeon called by the defendants to
give expert evidence.

[34]        
The defendants also called Dr. Schulson who was Ms. Rabiee’s doctor at
the time of the accident and for a short time thereafter. The defendants remark
it is curious that the plaintiff did not elicit an opinion from Dr. Schulson
and point out the evidence seems clear that Ms. Rabiee was dissatisfied with
Dr. Schulson. That may be true, but it is immaterial to any issue before me. The
only relevant information provided by Dr. Schulson was: (i) Ms. Rabiee reported
low back pain on a pre-accident visit (June 16, 2007); (ii) at the first visit
with Dr. Schulson after the accident in November 2008, Ms. Rabiee reported the
following symptoms happened immediately or very shortly after the accident –
nausea, neck and upper back pain, feeling “achy”, having low energy and
headaches. His clinical notes also reveal that Ms. Rabiee reported an increase
in pain throughout 2009.

[35]        
The plaintiff also relied on two “reports” sent to Dr. Pillay by Dr. Hawkesworth,
a physiatrist. Dr. Hawkesworth did not testify. Dr. Pillay testified that he
did not speak with Dr. Hawkesworth. For those reasons I place no weight on
these two reports.

[36]        
I will discuss the doctors’ evidence as it relates to the contentious issues
between the parties.

1. Failure to follow medical advice

[37]        
The plaintiff received medical advice from Drs. Pillay and Piper that
she should attend physiotherapy, get more exercise and slow down generally in
order to address her pain. But she said the travelling she had to do for her
job made it impossible for her to attend physiotherapy, which requires
consistent and frequent appointments to be effective. She did attempt to swim
or walk for exercise after the accident, but she was not successful in doing so
regularly. Ms. Rabiee also agreed she preferred not to take anti-depressant
medication prescribed by doctors but, instead, to address her low mood through
exercise and self-help.

[38]        
The defendants point out that Ms. Rabiee’s own expert (Dr. Pillay)
agreed that non-compliance with medical advice would have a negative impact on
a person’s recovery from injury, a view shared by Dr. Piper.

2. Pre-accident conditions

[39]        
The defendants submit that the medical records reveal the plaintiff
suffered from conditions she did not reveal to all the doctors she saw that are
relevant to her current injuries. The defendants say this calls into question
the plaintiff’s credibility and is material to the issue of causation. Those
conditions were:

a.           
The plaintiff apparently fell on her head as a child. That injury is
still evident and showed up on a CT scan performed on Ms. Rabiee as an adult in
October of 2011.

b.           
She had migraine headaches in the early 1990’s while living in Campbell
River, sometimes receiving injections for the pain at the hospital.

c.           
She had breast reduction surgery in 1998, in part, because of back pain.

d.           
In 1998, she was in a motor vehicle accident in Prince George which
apparently resulted in a diagnoses of cervical strain at the hospital.

[40]        
There was considerable controversy about a page of Dr. Schulson’s July
2007 clinical notes. The notes on that page indicate complaints of a low back
sprain, a skin problem (rosacea), medication to assist smoking cessation and
consultation about “mother”. However, both Ms. Rabiee and her son, Vahid,
testified that they believed those notes pertained to Dr. Schulson’s
consultation with Vahid and not Ms. Rabiee.

[41]        
The name “Vahid” appeared at the top of the page that was sent to both counsel
by the doctor and which was first put into evidence. However, when Dr. Schulson
took the stand, he had his files and the original of that page clearly shows
the name at the top to be “Nahid”. Dr. Schulson explained that someone folded
over the original document to prevent copying of notes outside the requested
date range and in so doing, obscured the left line of the “N”.

[42]        
Ms. Rabiee was recalled to react to this testimony, but she maintained her
belief that the notes did not record a consultation that she had with Dr.
Schulson. She claimed she never reported a skin problem and does not believe
she would have spoken to the doctor about her mother. However, another medical
record was put into evidence showing that she did receive a prescription for a
skin rash at about the same time. Vahid Rabiee was not recalled. Based on all
the evidence, I find it more likely than not that the July 2007 notes do relate
to Ms. Rabiee and, thus, there was an incident in July 2007 of her complaining
about low back pain.

3. The consistency between Ms. Rabiee’s symptoms and
the nature of the accident

[43]        
The defendants challenge whether Ms. Rabiee was injured by the accident
and, if so, the extent of her injuries. The doctors’ evidence on this issue
differed.

[44]        
The plaintiff relies on Dr. Pillay’s November 21, 2013 report and his
testimony. He concluded that Ms. Rabiee suffered a grade II whiplash injury to
her cervical spine and mechanical and myofascial pain in the trapezial and
mid-scapular regions. Dr. Pillay concludes Ms. Rabiee has reached the point
that her condition will not improve since it has been at least five years since
the accident. He also says Ms. Rabiee “will require regular medical care
particularly in addressing her chronic fatigue and mood symptoms.”

[45]        
The plaintiff emphasizes the consistency amongst the medical documents of
the timing and description of her symptoms; she says those documents buttress
her testimony about the nausea she felt upon impact, the nature and location of
her pain immediately following the accident, her headaches and fatigue. There
is also evidence that Ms. Rabiee consistently reported that her pain increased
over the first two or three years and that she had complaints about her range
of motion in her arms.

[46]        
Ms. Rabiee also became depressed. She had less energy and withdrew from
many social activities that she used to enjoy. Both Dr. Pillay and Dr. Piper
confirmed she described these symptoms to them. I also note that these changes were
corroborated by every lay witness who testified on her behalf.

[47]        
The defendants rely on Dr. Piper. In his report dated October 3, 2013,
Dr. Piper found no orthopedic pathology and said he noted no “muscle
spasm” which he said is present with most soft tissue injuries. During
cross-examination he maintained that a muscle spasm is a completely objective
measure. In his view, at most, Ms. Rabiee may have suffered very mild soft
tissue injuries to the neck and perhaps to the low back as a result of the
accident.

[48]        
The defendants say Ms. Rabiee exaggerated her pain, relying on two
points in Dr. Piper’s evidence. First, Dr. Piper said, in his mind, Ms. Rabiee
was trying to convince him that she was in pain by making facial grimaces
during her examination. He said this was unusual behaviour. Dr. Piper also testified
that most patients are most symptomatic sooner after an accident than later and
then they improve with time. He did accept, however, that it is possible to
exacerbate a mild soft tissue injury but usually pain prevents this. What he
meant by that is, if a patient experiences pain from certain movements because
of the injury, those movements will be avoided (consciously or unconsciously),
allowing the injury to heal. If those movements are not avoided, the injury may
become worse. He also testified that any exacerbation is most likely to resolve
within months, rather than years, after injury.

[49]        
The doctors disagreed on Ms. Rabiee’s prognosis. Unlike Dr. Pillay, Dr.
Piper suggested Ms. Rabiee had not reached the maximum point of recovery. In
his report he states there is “certainly no evidence that she is unable to
continue to work at the present time in any capacity for which she has
appropriate training." He did acknowledge her age would make recovery more
difficult.

[50]        
With regard to the medical evidence, the defendants submit Dr. Pillay’s
report should get minimal weight because of its poor quality. They say the
medical history is scant and does not specify if it refers to pre and/or
post-accident history. Dr. Pillay was unaware of and did not review Dr.
Schulson’s records, meaning he had only the plaintiff’s report of symptoms.

[51]        
The defendants also say Dr. Pillay’s clinical records are inconsistent
with statements in his report, the plaintiff’s testimony and other clinical
records. In his first report Dr. Pillay states Ms. Rabiee was “normal with the
exception of the cervical region”; yet his clinical notes record a “backache”
but no mention of neck (cervical) pain. In later clinical notes he does refer
to lower back pain.

[52]        
His notes refer to “chronic tension headaches” and investigations into
chronic fatigue and depression, but there are no documents or notes recording
the results of these investigations. Also, his clinical notes and report are
inconsistent with regard to Ms. Rabiee’s range of motion at different
points in time.

[53]        
The defendants say the only basis for Dr. Pillay’s conclusion that Ms.
Rabiee has reached the point of maximum medical improvement is the fact that it
has been five years since the accident. Dr. Piper specifically disagreed with
that conclusion opining that Ms. Rabiee’s condition could improve.

[54]        
I agree with the defendants that Dr. Pillay’s reports have some
weaknesses. Overall, I find Dr. Pillay to be a credible witness, but I do
consider the reliability of his opinion to be diminished for two reasons: the
inconsistencies between his notes and his report, and the failure to review
previous clinical notes.

[55]        
Overall I found Dr. Piper to be credible but I note that, as an
orthopedic surgeon, his expertise is not diagnosing or treating soft tissue
injuries. In particular, I found his insistence on the “objectivity” of
detecting muscle spasms to reflect a rigidity that is consistent with
skepticism that soft tissue injuries can be serious. This contributed to some
minimization of Ms. Rabiee’s symptoms. In my mind, that impacted the reliability
of his allegation that Ms. Rabiee was exaggerating her symptoms. He was the
only witness (other than Ms. Rabiee’s ex-spouse whose evidence I reject) to
suggest any kind of deception, exaggeration or malingering by Ms. Rabiee. I
find his evidence about exaggeration to be an unreliable outlier and I do not
place any weight on that aspect.

F. Findings of Fact

[56]        
Based on my assessment of all the evidence presented, I make the
following findings of fact:

a.     The
accident caused soft tissue injuries to Ms. Rabiee’s neck and lower back.

b.     Ms. Rabiee’s
symptoms got worse over time until they became chronic in about 2010. During
that time period she also experienced other symptoms including headaches, upper
back pain, fatigue, difficulty sleeping and depressed mood.

c.     The
demands of her job, particularly the long hours driving and being on the
computer, interfered with her recovery from the soft tissue injuries and, more
likely than not, exacerbated them.

d.     The
injuries, their impact on her life and the demands of her job negatively affected
her energy, mood and ability to enjoy social activities.

e.     There is no
evidence to link Ms. Rabiee’s childhood head injury to her soft tissue injuries
or headaches.

f.      There
is insufficient evidence to link her migraines or any pre-accident back pain to
the soft tissue injuries because the former both resolved prior to the
accident.

g.     The nature
of her job made it difficult for Ms. Rabiee to devote time to exercise and attend
regular and frequent physiotherapy sessions to help her recover. However, I
also find that Ms. Rabiee did not try hard enough to fit those activities into
her schedule.

h.     Ms. Rabiee
had significant stress in her life in the years after the accident that
contributed to her depressed mood and energy levels and, more likely than not,
contributed to the development of new symptoms and continuation of the soft
tissue injuries from the accident. Those stressors included the failure of her
husband’s and her brothers’ businesses, her deteriorating marriage, her parents
moving in to live with her and the Canada Revenue Agency audit.

i.       Regular
and consistent physiotherapy sessions and regular exercise would have, more
likely than not, reduced the aggravating impact that her job had on her soft
tissue injuries.

j.       Ms.
Rabiee’s condition can still improve with regular exercise and physiotherapy.
However, I do think it is more likely than not that she will continue to have
some minor, lingering pain in her neck and back because of her age and the fact
that those injuries were not treated (with physiotherapy and exercise) for a
relatively long period of time.

k.     Any
lingering neck and back pain will not prevent Ms. Rabiee’s ability to earn
income in the future.

II.       ISSUES

[57]        
There are four issues in this case:

a.    
Did the accident cause Ms. Rabiee’s injuries?

b.    
Is Ms. Rabiee entitled to non-pecuniary damages as a result of the
accident and, if so, in what amount?

c.    
Is Ms. Rabiee entitled to any other damages as a result of the accident?

d.     Did Ms.
Rabiee fail to mitigate her losses?

III.       ANALYSIS

[58]        
The legal test for negligence is well established and was conveniently
summarized by Voith J. in Brewster v. Li, 2013 BCSC 774 at paras. 77 – 84.
From his judgment, I have summarized the points most relevant to this case:

a.     The
plaintiff must establish that the defendant was both the “cause in fact” and a
proximate cause of any damage suffered.

b.     The test
for causation in negligence is the “but for” test. The court must determine if,
without the tortious act, the plaintiff’s injury would have resulted. If the
answer is “yes”, the defendant is not liable for the injury or the losses. If
the answer is “no”, however, the defendant is liable to the plaintiff for the
whole of the losses flowing from the injury.

c.     The
plaintiff must prove causation for both injury and loss, but the loss must be
caused by the injury. In this context, “injury” refers to the initial physical
or mental impairment of the plaintiff’s person as a result of the defendant’s
act, while “loss” refers to the pecuniary or non-pecuniary consequences of that
impairment.

d.     The burden
is on the plaintiff to prove, on a balance of probabilities, both the injury
and the loss.

e.     Generally,
the defendant must put the plaintiff back in the same (but not better) position
he or she would have been in had the tortious act not occurred.

f.      The
defendant must take the plaintiff as he finds her, even if her injuries are
unexpectedly severe or more dramatic than ordinarily suffered because of a
pre-existing condition (the “thin skull” principle).

g.     But the
defendant is not liable for the debilitating effects of a pre-existing
condition that the plaintiff would have experienced regardless of the accident
(the “crumbling skull” principle). In other words, compensation is not for the
loss from the pre-existing condition, only for the increased loss caused by the
negligent conduct.

[59]        
In addition to those principles, the following are particularly
important in this case:

a.     The
plaintiff only needs to show that the accident was “a” cause of her injuries.
The defendant is not excused from liability merely because there were other
factors contributing to injury for which the defendant is not responsible: Gabbard
v. Hung, 1999 B.C.J. No. 1907 at para. 21, citing Athey v. Leonati,
[1996] 3 S.C.R. 458 at paras. 16 – 19 (S.C.C.).

b.     Although
there was no damage to Ms. Rabiee’s vehicle, and the impact in this case was
very minor, it is well established that the assessment of a person’s injuries
is based on evidence presented in court and not according to the amount of
vehicle damage: Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.) and
Christoffersen v. Howarth, 2013 BCSC 144 at paras. 53 – 60.

c.     It is not
improper, however, for a defendant to make the argument that the nature of the
accident is a relevant consideration when assessing damages: Makara v.
Weihmann, 2005 BCSC 1757 at para. 7.

A. Causation

[60]        
The defendants question the plaintiff’s reliability and credibility (as
discussed above). Combined with what they say is the very weak evidence of Dr.
Pillay and the minor nature of the collision, the defendants say in their
written submissions that  “the evidence in support of the Plaintiff’s
allegations of severe limitations is quite shaky and ought to be regarded with
a great deal of skepticism.”

[61]        
I found Ms. Rabiee to be a forthright and credible witness. She was calm
during her testimony and cross-examination and she struck me as being genuine
and honest. She was not defensive or evasive in her testimony and would readily
agree with statements if true even though they were not in favour of her claim.
There are some inconsistencies in her evidence about her pre-accident medical
history. Certainly her insistence that Dr. Schulson’s July 2007 notes were not
about her was odd. However, overall I find her description of her symptoms and
the impact of those on her life to be reliable and credible.

[62]        
Given the findings of fact above, I am satisfied that the plaintiff has
established on a balance of probabilities that the accident caused soft tissue
injuries. The accident was clearly “a cause” of the soft tissue injuries. The
demands of her job contributed to the longevity and severity of her injuries,
but I will discuss that later with regard to mitigation.

B. Non-Pecuniary Damages

[63]        
Non-pecuniary damages compensate plaintiffs for pain, suffering, loss of
enjoyment of life and loss of amenities; each award must be assessed specific
to the particular circumstances of the plaintiff and is intended to ameliorate
the plaintiff’s condition: Stapley v. Hejslet, 2006 BCCA 34 at para.
45, leave to appeal ref’d [2006] S.C.C.A. No. 100. The parties agree on the
approach and refer to para. 46 of Stapley, where the Court of Appeal outlines
a list of non-exhaustive factors that influence an award of pecuniary damages,
which I summarize as including: the plaintiff’s age; the nature of her
injuries, including the severity and duration of her pain; the degree of the
impairment of physical and mental ability and/or disability; emotional
suffering; loss or impairment of life or lifestyle; impairment of family,
marital and social relationships; and the plaintiff’s stoicism (in the sense
that it should not be held against the plaintiff).

[64]        
The defendants emphasize that Ms. Rabiee’s injuries were very mild and
that there is little “objective” evidence of her injuries. They rely on Price
v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) where McEachern C.J.
quoted his own words in Butler v. Blaylock, [1981] B.C.J. No. 31
(B.C.S.C.) that “the court should be exceedingly careful when there is little
or no objective evidence of continuing injury and when complaints of pain
persist for long periods extending beyond the normal or usual recovery” and
that no one can expect citizens to be responsible for compensating a plaintiff
“in the absence of convincing evidence.”

[65]        
I do not take these quotes to mean that a stricter standard of proof
applies where the main evidence about injury comes from a plaintiff’s
subjective reports to doctors and testimony in court. The standard of proof
does not change and it does not matter if the evidence is “objective” or
“subjective”. In fact, after considering the above quotation, the Court of
Appeal in Butler v. Blaylock, [1983] B.C.J. No. 1490 (B.C.C.A.) clarified: 
“It is not the law that if a plaintiff cannot show objective evidence of
continuing injury that he cannot recover. If the pain suffered by the plaintiff
is real and continuing and resulted from the injuries suffered in the accident,
the plaintiff is entitled to recover damages.”

[66]        
The key consideration is whether the evidence, as a whole, establishes
that the plaintiff’s injuries were caused by the defendant’s negligence on a
balance of probabilities. I have concluded that Ms. Rabiee has met that burden.
Thus, the fact that the evidence of her injuries is based largely on subjective
reports does not detract from the application of the Stapley factors.

[67]        
With regard to those factors, Ms. Rabiee’s injuries were mild in
severity but had a longer duration than expected. The medical evidence
suggested her age may account for at least part of that lengthened duration. I
have also found that the demands of her job combined with her failure to attend
physiotherapy and exercise aggravated her soft tissue injuries, increasing the
pain she experienced and the duration of her symptoms.

[68]        
It is also clear that the injuries contributed to a stark change in Ms.
Rabiee’s lifestyle; she reported feeling depressed and frustrated by the
limitations her injuries had on her ability to be active physically and
socially. Given how vibrant and enriched her social life was before the
accident, the change would feel that much more dramatic to her. However, I have
also found that it is unlikely the injuries will negatively impact Ms. Rabiee’s
ability to work and, combined with her industrious nature, I find that the
accident did not disable her.

[69]        
In my view, taking all of these factors into account, I conclude damages
in the low range are appropriate. I reviewed all the cases presented by the parties
in support of their suggested award for non-pecuniary damages but will only
refer to those that I have found to be the most relevant. The plaintiff seeks
damages of $70,000. The plaintiff’s cases I found most helpful have a range of $45,000
to $75,000 for non-pecuniary damages as summarized below:

a.     Aubin
v. Ball, 2013 BCSC 962 – The plaintiff in this case was 23 years old at the
time of the accident and suffered a grade II whiplash, lumbar sprain and
muscular pain in the hip and buttock which the trial judge found would likely
be permanent and have a negative impact on earning capacity. Non-pecuniary
damages of $75,000 were awarded, although this included an amount for loss of
housekeeping.

b.     Warkentin
v. Riggs, 2010 BCSC 1706 – The plaintiff was 36 and suffered soft tissue injuries
to her neck and back and “widespread” pain. These injuries were aggravated by
increased muscle tension which led to headaches. The trial judge awarded
$50,000 in non-pecuniary damages.

c.     Cartwright
v. Cartwright, 2012 BCSC 1140 – The plaintiff was only 15 at the time of
the accident but the injuries were of similar nature to Ms. Rabiee’s. The
trial judge concluded the plaintiff had been moderately affected by chronic
back pain and would continue to suffer in the future although there was a
substantial possibility the pain would diminish with rehabilitation and
exercise. She was awarded non-pecuniary damages in the amount of $60,000.

a)    Jiwani v.
Borodi, 2014 BCSC 1164 – The 52 year old plaintiff suffered soft tissue injuries
to his neck and back. The neck pain and resulting headaches resolved after
about six months but the back pain remained. The trial judge awarded $65,000 in
non-pecuniary damages.

[70]        
The defendants submit $20,000 is an appropriate award but the range of
non-pecuniary damages in the most relevant cases they cited to me is $20,000 to
$45,000. Those cases are :

a.     Johal
v. Conron, 2013 BCSC 1924 – The plaintiff was 57 and suffered injuries to
the neck and lumbar spine, although there were some pre-existing conditions
that contributed to the injuries. She was awarded $35,000 in non-pecuniary
damages.

b.     Lees v.
Compton, 2013 BCSC 1015 – The plaintiff was 25 and suffered soft tissue
injuries for which she received $45,000.

c.     Sun v.
Sukhan, 2012 BCSC 365 – The plaintiff was found to have suffered for just less
than two years from soft tissue injuries to the back and neck caused by a low
velocity accident and received $20,000.

[71]        
Taking into account all of the cases and my conclusions about the evidence
in this case, I find Ms. Rabiee is entitled to $40,000 for non-pecuniary
damages.

C. Other Damages

[72]        
The plaintiff seeks only two other awards: (i) loss of future earning
capacity equivalent to two years’ salary she was earning at 3D ($140,000); and
(ii) $500 for attendance at a gymnasium or aquatic centre. She makes no claim
for loss of past income and earning capacity, cost of future care or retraining.

1. Loss of Future Earning Capacity

[73]        
The guiding principles for loss of future earning capacity are set out
in Langille v. Nguyen, 2013 BCSC 1460 at paras. 200 – 206, aff’d 2014
BCCA 430. Insofar as possible, compensation for lost earning capacity should
put the plaintiff in the position she would have been but for the injuries
caused by the defendant’s negligence. This requires a comparison of two future
events: the likely future of the plaintiff’s working life as if the accident
never happened versus the plaintiff’s likely future after the accident. Because
future events are being assessed the burden of proof is simple probability
rather than a balance of probabilities. There are two different approaches — the
earnings approach and the capital asset approach.

[74]        
A summary of the principles regarding this analysis was provided by
Savage J. in Parker v. Lemmon, 2012 BCSC 27 at para. 42:

[42] The approach to such claims is well set out in the
decision of Garson J.A. in Perren v. Lalari, 2010 BCCA 140 at paras.
25-32, which I summarize as follows:

(1)  A plaintiff must first
prove there is a real and substantial possibility of a future event leading to
an income loss before the Court will embark on an assessment of the loss;

(2)  A future or hypothetical possibility will be taken
into consideration as long as it is a real and substantial possibility and not
mere speculation;

(3)  A plaintiff may be able
to prove that there is a substantial possibility of a future income loss
despite having returned to his or her employment;

(4)  An inability to perform
an occupation that is not a realistic alternative occupation is not proof of a
future loss;

(5)  It is not the loss of
earnings but rather the loss of earning capacity for which compensation must be
made;

(6)  If the plaintiff
discharges the burden of proof, then there must be quantification of that loss;

(7)  Two available methods of
quantifying the loss are (a) an earnings approach or (b) a capital asset
approach;

(8)  An earnings approach
will be more useful when the loss is more easily measurable;

(9)  The capital asset
approach will be more useful when the loss is not easily measurable.

[75]        
The plaintiff does not identify which approach she is proposing but I
assume it is the earnings approach. However, she adduced no expert evidence
specific to earning capacity in the future and I have found the medical
evidence does not support a finding that her earning capacity will be diminished.
The evidence establishes that Ms. Rabiee is a hard-working person with
initiative who has a variety of experience (accounting, charity work,
counselling, human resources, supervision, food industry). I do not find her
injuries or other stressors in her life has diminished her capability to find
enjoyable and remuneratively rewarding work.

[76]        
The plaintiff’s written submissions make a bare assertion that she meets
the criteria cited in McCreight v. Currie, 2007 BCSC 127, varied on
other grounds 2008 BCCA 150, namely that: (1) the plaintiff has been rendered
less capable overall from earning income from all types of employment; (2) the
plaintiff is less marketable or attractive as an employee to potential
employers; (3) the plaintiff has lost the ability to take advantage of all job
opportunities which might otherwise have been open to her had she not been
injured; and (4) the plaintiff is less valuable to herself as a person capable
of earning income in a competitive labour market. The only explanation provided
is that she is less capable and marketable overall as an employee because she
cannot work telephones and computers uninterrupted for a steady period of time.
I assume she relies on Dr. Pillay’s opinion that she may be somewhat restricted
in her working capacity in the future. That opinion is premised on an
assumption that she has reached her maximum recovery which, as I discuss above,
is not a conclusion that has been proven on the balance of probabilities. Instead,
I prefer the evidence of Dr. Piper on this point who opined that, with exercise,
he expects her condition to improve.

[77]        
I further note that in Dr. Pillay’s report which was written on November
21, 2013, he noted that at Ms. Rabiee’s August 7, 2013 consultation, they had
discussed Ms. Rabiee “ending her job with Home Depot”. Despite this knowledge,
Dr. Pillay did not recommend that but instead wrote:

She states that her work is affected by her injuries. I agree
that this is most likely the case, particularly involving physical type of
work. In conjunction with this statement, she will require regular medical care
particularly in addressing her chronic fatigue and mood symptoms.

Otherwise she will be able to
continue working and I do not anticipate that she would have to stop working
because of injuries sustained in this motor vehicle accident.

[78]        
The defendants say that Ms. Rabiee is not entitled to any compensation
under this head because, among other reasons, she did not pursue being a
realtor, claiming her physical limitations negatively impacted her ability to
do the job. That is not quite right; Ms. Rabiee did mention some difficult
carrying “open house” signs, but I did not understand that to be the primary
reason she did not pursue that profession. Ms. Rabiee explained that she did
not like the self-promoting, hierarchical structure of the realty business.
This is reflected in the fact that she was not successful at it and, in my view,
it is reasonable for her not to have pursued that as a profession. She was not
well-suited to it.

[79]        
The defendants also say “when a person is injured but wants to continue
working, they explore the possibility of accommodation” and since the plaintiff
did not approach her employer to seek limited duties, she failed to mitigate.
There was no evidence whatsoever that Ms. Rabiee did not “want to work”. She
continued to do so with pain. It was only when she felt she could not continue
at a job she loved that she made, what she called, a very difficult decision to
quit in order to focus on her health.

[80]        
The defendants refer to the “duty to accommodate” under human rights
legislation to say she ought to have challenged her employer to reduce her work
duties. That submission is Pollyannaish, speculative and based on nothing more
than words in a statute. It has no merit.

[81]        
In my view, the plaintiff has failed to adduce reliable evidence to demonstrate
it is probable that she will earn less in the future because of the injuries
from the accident. This claim is, therefore, dismissed.

2. Future Care

[82]        
Although not specifically identified as compensation for future care,
the claim for $500 for use of gym and/or aquatic facilities is modest and reasonable.
It is well established on the evidence that exercise is recommended to address
her injuries and, therefore, I order this award.

D. Mitigation

[83]        
The parties agree in general on the test to prove mitigation. The onus
is on the defendants to establish that a qualified medical expert recommended a
specific course of treatment and the plaintiff unreasonably failed or refused
to follow that treatment, although it was available to her: Chiu v. Chiu,
2002 BCCA 618 at para. 57 and Borgfjord v. Penner, 2010 BCSC 1809 at para.
118.

[84]        
The defendants say the plaintiff’s failure to mitigate is established by
four things: her failure to take medication (anti-depressants); failure to
participate in physiotherapy; failure to pursue counselling for non-physical
injuries; and her continuing to work at 3D after the accident.

[85]        
With regard to medication, the defendants’ position is confused. They
say, on the one hand, that there was no “diagnosis” of depression so damages should
not be awarded for that, yet they also say she should be faulted for not taking
anti-depressants. This is untenable. Ms. Rabiee did try anti-depressants but
preferred to address her mood difficulties in other ways. The medical evidence,
in my view, proves that there was a relationship between her physical injuries
impacting her social life and work capacity and her depressed mood. In other
words, it was reasonable for her to choose not to take anti-depressants,
believing the improvement of her injury would also improve her mood.

[86]        
I make the same finding with regard to “counselling”. There was no
psychiatric diagnosis. Ms. Rabiee is fully immersed in the Baha’i faith and I
have no doubt that she would have received emotional support through that
community. The inability to participate as fully in her spiritual and social
community undoubtedly had a negative effect on her mood. It seems to me the
antidote to that was her improvement to the point of being able to participate
again. I do not accept that it was unreasonable for her to reject the notion of
entering a costly intervention (counselling) based on a vague recommendation
but no diagnosis.

[87]        
However, the evidence is consistent that had she engaged in a consistent
regime of exercise and undertaken physiotherapy, her condition would have
improved. Ms. Rabiee admitted that she was unable to be as active as she would
have liked. But she said the nature of her job and other responsibilities made
it extremely difficult to engage in a consistent exercise regime or
physiotherapy treatment plan. The dispute is whether it was reasonable for her
not to follow that advice.

[88]        
The defendants must take the plaintiff as they find her. While Ms.
Rabiee continued to deal with her injuries, she also had to deal with:

a.     the
increased burden on her to earn income for her family because her husband’s
video store shut down;

b.     the
disintegration of her marriage over a few years;

c.     the
burdens of taking on the regional sales manager role with 3D;

d.     her
decreased ability to participate and host in as many Baha’i activities as she
was accustomed to;

e.     the
failure of her brothers’ construction company with which she had some
involvement;

f.      the
move of her parents into her home; and

g.     a tax
dispute with Canada Revenue Agency.

[89]        
Ms. Rabiee’s failure to follow physiotherapy is unfortunate. I find she
did not make a serious attempt to follow the advice to exercise and seek
physiotherapy. She only attended four physiotherapy sessions after the
accident. It may be that a physiotherapist could tailor a treatment program
knowing of her difficult schedule. More importantly, there may have been
exercises she could do on her own. But she made no effort to find that out.

[90]        
I also find that she did not make a concerted effort to return to
exercise. I believe that she was extremely busy and it may have been difficult
to find time, but she did not question the beneficial impact exercise would
likely have given her. In my view, she did not place a high enough priority on
her own recovery. Prior to the accident she was a very active person so she had
the experience of being dedicated to exercise.

[91]        
Because the evidence was unequivocal that she would have benefited from
physiotherapy and exercise, and because of the lack of evidence that she did
make her best effort to participate, I do think a reduction to the damages
award is appropriate for this failure to mitigate and I would reduce the award
by 5%. I have chosen a percentage on the low end in recognition that Ms. Rabiee
was under enormous stress and her behaviour is compelling and understandable.

[92]        
The defendants also question Ms. Rabiee’s choice to remain working at
3D. Ms. Rabiee is clearly a hard-working person. I find no evidence that she
would malinger or be lazy. The defendants suggest, instead, that she probably
worked too hard and ought to have slowed down, pursued real estate or found
another job.

[93]        
I disagree with the defendants. I accept Ms. Rabiee’s evidence that
“slowing down” was not a realistic option in the job she was doing. I note the
plaintiff also responds to the defendants’ position that she did eventually
“slow down”; she quit her job and moved to Prince George to focus on her
health.

[94]        
Although qualified, it was clear that Ms. Rabiee did not enjoy working
in real estate. The defendants suggested her personality was well suited to
that profession because she is a “people person”. I accept Ms. Rabiee’s
evidence that the “people” skills required for a successful real estate agent were
not her skill set; the industry is very competitive and requires self-promotion.
She was not able to cover her over-head. Perhaps she was not very successful at
it because she did not enjoy the work. Even if she had been suited to the job,
it can take a few years of working very long hours to earn a good income. That
would not have been a prudent choice given her family’s financial situation.
Nor would it have been consistent with advice to “slow down”. I do not find her
failure to pursue a real estate profession to impact her damages award.

[95]        
Given her industrious nature, I do find it likely Ms. Rabiee could have
found other work, but I am not satisfied it was likely she could have found one
that paid as much as the job at 3D. At 3D, Ms. Rabiee was earning a good
income. She clearly loved her job. She envisioned a future with her job, saying
she thought she might move to Vancouver at some point.

[96]        
In view of all of these factors, I find it was reasonable for her to
continue working at 3D rather than adding the uncertainty of trying to find a
new job to her burden when she was the only adult earning an income.

IV.      CONCLUSION

[97]        
In summary, I award Ms. Rabiee $40,000 for non-pecuniary damages,
reduced by 5% for a failure to mitigate. I also award $500 for future care. I
dismiss her claim to damages for loss of earning capacity based on insufficiency
and lack of reliable evidence.

V.       COSTS

[98]        
If the parties cannot agree on an order for costs, they may contact the registry
no later than 30 days from the date of this decision to schedule an appearance no
longer than one hour to present submissions. Alternatively, within 30 days of
the date of this decision, counsel may inform the registry that they will
provide written submissions addressing costs according to the following:  (i) no
later than 45 days after the date of this decision, the plaintiff will provide
written submissions on costs; (ii) no later than 60 days after this decision,
the respondent will provide submissions; and (iii) no later than 70 days after
this decision, the plaintiff may provide a brief reply.

[99]        
Whether appearing in person or providing written submissions only, no
party’s written submissions shall exceed 5 pages at no less than 1.5 spacing.
The reply shall be no more than two pages.

“Sharma
J.”